The Center for Military Readiness (CMR) predicts that if the Department of Justice directly appeals a May 21 decision issued by the United States Court of Appeals for the Ninth Circuit, which reinstated a lower court lawsuit challenging the law regarding gays in the military, the Supreme Court will overturn the ruling.

CMR President Elaine Donnelly described the decision of the Ninth Circuit—the most-frequently overruled U.S. Court of Appeals in the country—as another egregious example of “extreme judicial activism.” She added, “Once again, the Ninth Circuit Court of Appeals has proven that federal judges are not competent to run the military.”

The Ninth Circuit’s order did not invalidate the law, Section 654, Title 10, which was passed by Congress in 1993 with overwhelming bipartisan majorities in both houses of Congress. Rather, a three-judge panel reinstated the lawsuit of Major Margaret Witt, a former Air Force nurse and reservist, which had been dismissed by a U.S. District Court.

Maj. Witt sued when her career was put on hold due to a homosexual relationship. According to the Air Force Times, she and a civilian lesbian woman had been living outside of McChord Air Force Base near Tacoma, Washington, for about six years. The 1993 law, which states that homosexuals are not eligible to serve in the military, applies at all times and not just on military bases. She was honorably discharged from the Air Force in October 2007.

Mrs. Donnelly criticized the court’s judicial activism. “Historically the Supreme Court has respected the principle of “deference” to Congress and Executive Branch authorities who have the constitutional responsibility to make policy for the military. This principle should be defended by the Department of Justice and reinforced by the Supreme Court. The military is an institution that protects individual rights, but it must be governed by different rules.”

The Department of Justice has several options for responding to the Ninth Circuit’s decision, including a direct appeal to the U. S. Supreme Court. Donnelly urged the Department of Justice to challenge the Ninth Circuit’s unjustified order sending the case back to the lower court for a second review under an intermediate “heightened scrutiny” standard. Previous cases upholding the constitutionality of the 1993 law, using a “rational basis” standard of review, have not required such a process.

Donnelly noted that capitulation to the Ninth Circuit’s order would “subject the armed forces to the whims of arrogant federal judges who want to misuse their power to impose a sexual agenda on our men and women in the military.” The government would have to present individual testimony and findings proving that Maj. Witt’s continued presence would have a negative impact on good order, morale, and discipline in the Air Force. An appeal directly to the Supreme Court would resolve the procedural issue and probably uphold the law.
The Center for Military Readiness is an independent public policy organization that specializes in military personnel issues. More information on this issue is available in several articles posted at www.cmrlink.org, and in a detailed article written by Donnelly for the Duke University Journal of Gender Law & Policy.